2 Lans. 506 | N.Y. Sup. Ct. | 1870
By the Court
A review of this case requires the statement of the leading facts proved on the trial. The plaintiff’s intestate, Frederick Brickner, was a carpenter, in the employ of the defendant, at West Albany, at the time of the accident which resulted in his death, and which occurred in October, 1867. Brickner was at the time, and for some days previous, with three others, had been, engaged in putting sky-lights into the roof of the shop of the defendants ; and, to effect this object, had built scaffolding below the roof, under the openings for the sky-lights, at a height of some twenty-five feet above the floor or ground of the shop. Three such sky-lights were to be constructed; and to do this, holes had to be cut through the roof, of the size of the sky-light. The carpenters had to stand upon the scaffold while at work, and while raising up the timbers from below with which to construct them, laying the timbers when raised upon the scaffolds. The first two of these scaffolds were constructed by three carpenters, of which Brickner was one. These two scaffolds answered all the purposes of their construction. The third scaffold, which was built for the like purpose of being used for the carpenters to stand upon while constructing the third sky-light, was built by two young men of the ages of sixteen and eighteen, who were in the employ of the defendant, and who had little (if any) knowledge of the trade, one of whom had worked at the business but about two months.
The directing power, there, so far as the proof shows it, is, that one Colby was master mechanic, under one Jones, and one Westman was boss of the gang of carpenters. That Jones and Colby were competent men, but there was proof that Westman indulged in habits of drinking, and was occasionally intoxicated; that Colby had threatened to - dismiss him for that reason ; and some proof was given, that he was intoxicated at the time he ordered the carpenters upon the defective scaffold. The evidence is left uncertain, by whose direction it was, that these two boys constructed the defective scaffold. The carpenters who entered upon it, did not know. They were sent there to work upon it by Westman, who was the immediate boss of the gang of carpenters, and directed their work. Upon this statement, the first question, in fact,' the only question, as it seems to me, is, was there any fact in the case, to be submitted to the jury? This is a question of
In this case, avg may perhaps assume, as a settled general rule, “ that a master is not responsible to those in his employ, lbr injuries resulting from the negligence, carelessness, or misconduct, of a fellow serwant engaged in the same general business.” (Wright v. N. Y. Cent. R. R. Co., 25 N. Y., 564, and cases cited.) As also, “ the rule exempting the master, is the same, although the grades of the servant or employes are different, and the person injui’ed is inferior in rank, and may be subject to the directions and general control of him, by Avhose act the injury is caused.” (Id., 565.) A later case in the same court (Warner v. The Erie Railway Co., 39 N. Y., 471) lays down the following rule, which is not in conflict with Wright v. N. Y. Cent. R. R. Co., supra, viz.: “ The only ground, then, which the law recognizes, of liability on the part of the defendant is, that which arises from personal negligence, or such want of care, and prudence in the management of its affairs, or the selection of its agents, or appliances, the omission of which occasioned'
The principle of this proposition is nearly identical with that contained in Snow v. Housatonic R. R. Co. (8 Allen, 444, 5), as follows: “Now, while it is true, on the one hand,that a workman or servant, on entering into an employment, by implication agrees that he will undertake the ordinary risks incident to the service in which he is to be engaged, among which is tlie negligence of other servants employed in-similar services by the same master, it is also true, on the other hand, that the employer or master impliedly contracts that he will use due care in engaging the services of those who are reasonably fit and competent for the performance of their respective duties in the common service, and will also take due precaution to adopt and use such machinery, apparatus, tools, appliances and means, as are suitable and proper for the prosecution of the business in which his servants are engaged, with a reasonable degree of safety to life, and security against injury. The case of Noyes v. Smith (28 Vt. R., 63) is also a ease adopting the same principle; and while it recognizes fully the rule “ that a master is not liable to his servant for an injury occasioned by the negligence of a fellow servant in the course of their common employment,” the court says “such rule has no application where there has been actual fault or negligence on the part of the master, either in the act from which the injury arose, or in the selection or employ ment of the agent which caused the injury.” This opinion is sustained by citing to its support the case of Hutchinson v. Railway Co. (6 Wells. Hurl. & Gordon, 352), which also thus qualifies the rule: “ That the master shall have taken due care not to expose his servant to unreasonable risks.” The Vermont court then lay down this rule: “The master, in relation to fellow servants, is bound to exercise diligence and care that he brings into his service only such as are capable, safe and trustworthy; and for any neglect in exercising that diligence, he is liable to his servant for injuries sustained from that neglect.” It is not necessary that he should know
In the case of Gilman v. The Eastern R. R. Corporation (10 Allen, 233, 239), an employe of the defendant brought his action for an injury 'occasioned by the negligence of a switchman in failing properly to adjust the switch upon the track. The court held, that the plaintiff, being a fellow servant in the employ of the same railroad company, could not have recovered of their common master; but they add: “ The evidence offered by the plaintiff at the trial was competent to show that the defendant, knowingly or in ignorance, caused by their own negligence, employed an habitual drunkard as a switchman and thereby occasioned the accident. Of the sufficiency of this evidence, a jury must judge. If the plaintiff can satisfy them that such misconduct or negligence in the defendant caused the injury, and that he himself used due care, he may maintain his action.” In the same case they say: “It is well settled, both in England and America, that a master is bound to use ordinary care in providing his structures and engines, and in selecting his servants, and is liable to any of his fellow servants for his negligence in this regard.” (See authorities cited in this case on page 238, and Tarrant v. Webb, 18 C. B. R., 797.)
If the case we are reviewing depended upon the question, whether a fellow servant could maintain an action against the common master, for the negligence, carelessness or misconduct of a fellow servant engaged in the same general business, it would be clear that the learned judge correctly ordered a non-suit at the trial. This case, however, has evidence in it tending to sustain a different basis of right to recover, to wit:
There was evidence in this case, of the incompetency of the persons who constructed the scaffold in question; the fall of which, caused the death of the plaintiff’s intestate. They were mere boys, sixteen and eighteen years of age, unlearned in the trade of carpenters, and as a natural consequence, inexpert, and unacquainted with the strength and support necessary for such a structure. In the absence of proof, as to who directed them to construct this scaffold, the presumption must be, that it was the defendant, or the directing power of the defendant; some one who had the authority to direct. If the presumption should be, that it was Westman, the boss carpenter, then the direction was given by one as to whose competency, by reason of his habits of intemperance, was a question of fact, properly for a jury. It is entirely clear, that the scaffold, as a structure, implement, facility, or appliance by whatever name it may be called, was an unsafe and dangerous one; it was constructed by incompetent persons, and of poor and insufficient materials. When this was proved, I think, the burden was upon the defendant of showing, at least, that it was constructed by a competent director of work, or competent fellow servant. If the defendant, as master, directed these incompetent boys to construct this scaffold,' then they are responsible for the consequences.
Perhaps we have gone as far as necessary, to show that it was error in the judge, to take this case from the jury. I do not understand it to be urged as a ground for sustaining the
Though the case does not inform us who employed, either Jones, Colby, or Westman, as agents or operatives, it does appear that, among themselves, they took some rank, in the order of Jones, Colby and Westman. They were all called bosses by the workmen, which is doubtless a title of superiority, perhaps each in a different department. Jones was highest, but Colby employed and discharged men; and West-man was in charge of, and directed the gang of carpenters as to their work. As none but the principal has the right, to employ agents and servants, without a delegation of the power to do so, the presumption must be, in this case, in the absence of other evidence, that these three bosses were employed by the defendants, and each had delegated to him, power to direct.
It is claimed, that in cases of corporations who can only act by agents, that the directors may be regarded as the master, or principals, and that all others, all persons in their employ, whatever may be their rank, or the character of their employment, or duties, whether general superintendent, or the lowest grade of menial laborers; all stand upon an equality of co-laborers, or co-employes, as regards the question of negligence toward each other. This may be the rule where the executive power, the directing and superintending duties of the corporation, are performed by the directors in person, as was the case of Warner v. Erie Railway Co., supra. I have not yet learned from any respectable adjudications, that a railroad, or other corporation, by appointing a superintending agent to transact all executive duties, arid
A corporation cannot act personally. It requires some person to superintend structures, to purchase and control the running of cars, to employ and discharge men, and provide all needful appliances. This can only be done by agents. When the directors themselves personally act as such agents, they are the representatives of the corporation. They are then the executive head or master. Their acts are the acts of tile corporation. The duties above described are the duties of the corporation. When these directors appoint some person other than themselves to superintend and perform all these executive duties for them, then such appointees equally with themselves rejiresent the corporation as master in all those respects. And though in the performance of these executive duties he may be and is a servant of the corporation, he is not in those respects a co-servant, a co-laborer, a co-employe, m the common acceptation of those terms, any more than is a director, who exercises the same authority. Though such superintendents may also labor, like other co-laborers and he maybe in that respect a co-laborer, and his negligence as such co-laborer, when acting only as a laborer, may be likened to that of any other, yet, when by appointment of the master, he exercises the executive duties of master, as-in the employment of servants, in the selection for adoption of
We are referred by the brief of the defendant’s counsel, to two cases recently decided in the English courts. (Gallagher v. Piper, 16 C. B., N. S., 669, and Wilson v. Murry, decided
This case shows an absence of all evidence, as to the actual power of those persons who exercised executive duties. The apparent authority, in such case, must be presumed to be the real authority. There were facts in the case that should have been presented to the jury. It was error to nonsuit.